Tellado v. United States, Docket No. 11–3227–pr.

• Decision Date: 12 March 2014
• Docket Number: Docket No. 11–3227–pr.
• Citation: 745 F.3d 48
• Parties: Shawn TELLADO, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

745 F.3d 48

Shawn TELLADO, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

Docket No. 11–3227–pr.

United States Court of Appeals, Second Circuit.

Argued: May 24, 2012.

Decided: March 12, 2014.

Terence S. Ward, Assistant Federal Public Defender, Federal Public Defender's Office for the District of Connecticut, Hartford, CT, for Petitioner–Appellant.

Robert M. Spector (Sandra S. Glover, on the brief), Assistant United States Attorneys, on behalf of Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, CT, for Respondent–Appellee.

Before: HALL and LIVINGSTON, Circuit Judges, BERMAN, District Judge. ¹

HALL, Circuit Judge.

Shawn Tellado (“Tellado”) appeals from a judgment entered on July 27, 2011, in the United States District Court for the District of Connecticut (Kravitz, J.) denying his motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.² On appeal, Tellado argues (1) that because the district court omitted, during the Rule 11 proceedings, an adequate explanation of his right to attack collaterally his sentence—a right he waived in his plea agreement—his waiver of that right was not knowing and voluntary; and (2) that the district court erred when it denied his motion to amend his § 2255 motion to include an ineffective assistance of counsel claim. See generally Tellado v. United States, 799 F.Supp.2d 156 (D.Conn.2011). We hold that when entering his guilty plea Tellado knowingly waived his rights to attack collaterally his sentence. Moreover, the process by which the district court advised Tellado of his rights to appeal and to attack collaterally his conviction did not constitute plain error.³See United States v. Cook, 722 F.3d 477, 481 (2d Cir.2013) (establishing plain error review applies to appeals challenging portions of a plea agreement not objected to at the time the plea is entered). We also hold that the district court did not abuse its discretion when it denied Tellado's motion to amend his petition to plead an ineffective assistance of counsel claim.

For the reasons that follow, we affirm the judgment of the district court.

Background

A federal grand jury indicted Tellado as one of a number of defendants involved in a drug conspiracy, in violation of 21 U.S.C. § 846, charging him with conspiracy “to possess with intent to distribute, and to distribute controlled substances, namely mixtures and substances containing a detectable amount of cocaine and cocaine base, Schedule II controlled substances, and heroin, a Schedule I controlled substance, contrary to the provisions of Title 21, United States Code, Section 841(a)(1).” United States v. Tellado, 3:06–CR–00269 (MRK), Indictment 2, Oct. 4, 2006, ECF No. 1.⁴ Thereafter, Tellado entered into a plea agreement by which he admitted (1) that a conspiracy existed, (2) that he knowingly and willingly participated in it, and (3) that the amount of cocaine subject of the conspiracy was 500 grams or more. Relevant to his present appeal, the plea agreement included a section titled “Waiver of Right to Appeal or Collaterally Attack Sentence [.]” United States v. Tellado, 3:06–CR–00269 (MRK), Plea Agreement 4, May 4, 2007, ECF No. 427. The waiver provided:

The defendant acknowledges that under certain circumstances he is entitled to appeal his conviction and sentence. 18 U.S.C. § 3742. It is specifically agreed that the defendant will not appeal or collaterally attack in any proceeding, including a motion under 28 U.S.C. § 2255 and/or §[ ]2241, the conviction or sentence of imprisonment imposed by the Court if that sentence does not exceed 188 months even if the Court reaches a sentencing range permitting such a sentence by a Guideline analysis different from that specified above or otherwise contemplated by the parties.

Id. at 4.

In the plea agreement Tellado also consented to be designated a career criminal under § 4B1.1 of the United States Sentencing Commission Guidelines, effective November 1, 2006, (“the Guidelines”). The bases of the career offender status under § 4B1.1 were two prior convictions for sale of narcotics in violation of Connecticut General Statutes § 21a–277(a)—charges to which Tellado had pled guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), thereby sidestepping any need for him to confirm at the time the factual bases of the charges to which he was pleading guilty. As a result of Tellado's designation as a career criminal his offense level under the Guidelines increased from an offense level of 26 to 34. Recognizing his acceptance of responsibility evidenced in the agreement to plead guilty to the federal offense, Tellado's offense level was adjusted to 31. The plea agreement also set out that his criminal history category was VI, resulting in a guidelines imprisonment range of 188 to 235 months, along with a fine in the range of $15,000 to $150,000.

In May 2007, Tellado entered his plea of guilty. After placing Tellado under oath and discussing the effect of a guilty plea on Tellado's trial rights, the court addressed the contents of the plea agreement itself. During that colloquy, the court asked Tellado whether he had carefully read the entire agreement. Tellado responded he had. He also acknowledged reviewing it with his attorney, and when questioned whether he “underst[ood] the terms,” Tellado responded “Yes.” United States v. Tellado, 3:06–CR–00269 (MRK), Plea Hearing 18:10–20, May 4, 2007, ECF No. 1229 (“Plea Hearing”). Tellado's attorney also informed the court that he was satisfied that his client understood the agreement as a whole.

Next, the district court had the government summarize the terms of the agreement. The government's summary included the bases for designating Tellado as a career offender. The government explained that in 2003 Tellado was convicted of selling narcotics, and that those convictions constituted the predicate offenses triggering a sentencing enhancement.⁵ In its review of the terms of the agreement, the government also pointed out to the court that Tellado “has agreed to waive his rights of appeal or to collaterally attack the conviction or sentence of imprisonment by the Court, as long as the sentence does not exceed 188 months.” Id. at 23:16–19. After the government highlighted the waiver and discussed its scope, the district court requested the government to pause while the court expressly inquired of Tellado about whether he understood the waiver. At this point, the court reviewed with Tellado the impact of his waiver, stating “in this waiver, you're agreeing that so long as your sentence does not exceed 188 months, you're not-- you're going to give up your right to appeal, even if you thought that the way in which I got to your sentence might be wrong.” Id. at 23:25–24:5. The court inquired whether Tellado had discussed the waiver with his attorney and whether Tellado was willing to give up the right. Id. at 24:6–12. Tellado responded that he and his attorney had discussed the waiver, and that, “Yes,” he was willing to give up his right to appeal. Id. at 24:12. Tellado also confirmed that the government's description of the scope of the waiver provision was accurate. In the course of this interchange, however, the district court never at any point stated the words “collateral attack,” nor did it discuss explicitly what the waiver of that right would entail. Throughout, the court referred to the waiver as applicable to the opportunity to “appeal your conviction,” a “right to appeal,” and an “appeal right.” Id. at 23:23–24; 24:3; 24:10; 24:15. Following the colloquy, Tellado signed the plea agreement in open court.

Four months later, the court sentenced Tellado to 188 months' imprisonment. In the sentencing proceedings, the court advised Tellado that, notwithstanding the plea agreement waiver, Tellado retained a limited right to appeal on the bases of ineffective assistance of counsel or prosecutorial misconduct. The judgment imposing sentence became final on September 24, 2007.

In September of 2008, this court decided United States v. Savage, 542 F.3d 959 (2d Cir.2008). That decision provides the impetus for Tellado's present appeal. In Savage, the defendant argued that his previous conviction for violating Connecticut General Statute § 21a–277(b) was based upon an Alford plea and, thus, could not be counted as a “controlled substance offense” as defined under the Guidelines. Id. at 966. We agreed, holding that a conviction based on an Alford plea to a § 21 a–277(b) violation did not amount to a conviction for a controlled substance offense that could serve as a predicate under the Guidelines.⁶Id. at 967.

In light of Savage 's holding, Tellado filed in the district court a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The district court denied Tellado's petition on the grounds it was filed outside the one-year period of limitation under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2255(f). Tellado, 799 F.Supp.2d at 162. The district court explained that no new “fact” had been discovered that would extend the starting period for the one-year period of limitations under § 2255, nor did Tellado's circumstances warrant equitable tolling given that Tellado had not demonstrated actual innocence. Alternatively, the district court found that Tellado knowingly and voluntarily waived his right to appeal or attack collaterally any sentence that did not exceed 188 months' imprisonment. Subsequently, the district court also denied Tellado's motion to amend his § 2255 petition to include a claim based on ineffective assistant of counsel. The court found that the claim would be futile as it was based on the same arguments that formed the grounds for the original § 2255 motion and there was no assertion that his trial counsel was ineffective due to any erroneous advice given by counsel.

Tellado...